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2012 DIGILAW 295 (ORI)

Nirakar Sahoo v. State of Orissa

2012-07-12

B.K.NAYAK, B.P.DAS

body2012
JUDGMENT B.K. NAYAK, J. : In this writ application the petitioners challenge the order dated 28.11.2011 (Annexure-16) passed by the learned Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.605 (C) of 2010 with a further prayer to direct the opposite parties to consider the case of the petitioners for appointment in the establishment of Controller of Accounts, Orissa, Bhubaneswar (opposite party No.2). 2.The brief facts of the case as asserted by the petitioners in this writ application may be stated as follows : The Office of the Controller of Accounts-opposite party No.2 was established in the year 1991 by the State Government to deal with the pension and provident of employees of aided educational institutions and the Universities. In 2000 it was declared as one of the Heads of Departments. Opposite party No.2 started computerization of GPF and pension accounts of the employees. The work was given to a private service provider, namely, M/s. Chancellor Infotech. The petitioner Nos.1, 4 and 6 being selected by the service provider, were engaged as Data Entry Operators (DEOs) in the office of opposite party No.2. With the increase of work load, some more DEOs were required to be engaged for which the service provider held an open competition in which the petitioners were duly selected and thereafter engaged as DEOs in the office of opposite party No.2. On 05.09.2003, the State Government accorded permission for engagement 31 computer knowing Accountants on contractual basis on consolidated salary of Rs.5,000/- per month through service provider in the office of opposite party No.2. Thereafter, opposite party No.2 entered into an agreement with another service provider, namely, M/s. Trident Softech (P) Ltd., in which it was stipulated that the service provider would provide 31 DEOs with minimum qualification of Graduation with PGDCA or ‘O’ level computer qualification. The agreement remained in force for a period of three years. The suitability of the petitioners along with others was adjudged and they having been found suitable were allowed to continue as DEOs in the office of opposite party No.2. The contractual service of the petitioners continued till 28.02.2008 and thereafter there was no extension of their service and as such they were rendered unemployed. The suitability of the petitioners along with others was adjudged and they having been found suitable were allowed to continue as DEOs in the office of opposite party No.2. The contractual service of the petitioners continued till 28.02.2008 and thereafter there was no extension of their service and as such they were rendered unemployed. Considering the plight of the petitioners, the State Government-opposite party No.2 again sanctioned 20 temporary posts of DEOs in the office of opposite party No.2 to be filled up on contractual basis on consolidated remuneration Rs.4,000/- per month. Though a committee constituted under the Chairmanship of opposite party No.2 selected 20 persons including the petitioners, no engagement to the selected persons was given. On the other hand, the State Government in the Finance Department under their letter No.56347/F dated 21.11.2009 (Annexure-13) created 63 posts of Junior Assistants in the office of opposite party No.2 in lieu of abolition of 63 posts of Senior Assistants, which were lying vacant and withdrawal of the temporary posts of DEOs. It was indicated in Annexure-13 that recruitment of candidates to the newly created posts of Junior Assistants was to be made through the Orissa Staff Selection Commission by following Orissa Ministerial Services (Method of Recruitment and Condition of Services of Assistants and Section Officers in Heads of Departments) Rules, 1994 (in short ‘OMS Rules, 1994’). It was also indicated that preference may be given to the candidates having knowledge of computer literacy. In terms of letter under Annexure-13, opposite party No.2 issued letter dated 28.01.2010 (Annexure-14) to the Orissa Staff Selection Commission (opposite party No.3) to sponsor the names of 61 candidates for appointment as Junior Assistants in the office of opposite party No.2. On receipt of the aforesaid indent from opposite party No.2, the Staff Selection Commission (opposite party No.3) published an advertisement in the Oriya daily, ‘The Samaj’ on 09.02.2010 inviting application for 218 posts of Junior Assistants for the office of several Heads of Departments including 61 posts for the office of opposite party No.2. In the said advertisement, which is annexed as Annexure-15, admittedly no qualification of computer knowledge has been prescribed. In the said advertisement, which is annexed as Annexure-15, admittedly no qualification of computer knowledge has been prescribed. 3.Challenging the advertisement under Annexure-15, the petitioners filed Original Application No.605 (C) of 2010 before the Orissa Administrative Tribunal only on the ground that the advertisement was silent regarding the stipulation of the Government in Annexure-13 that in the matter of recruitment preference may be given to the candidates having knowledge of computer. On contest, the learned Orissa Administrative Tribunal dismissed the Original Application by its judgment dated 28.11.2011 (Annexure-16) holding that opposite party No.3 is duty bound to proceed with the recruitment process in accordance with the rules and not according to instruction of the Finance Department and that since the Rules of recruitment did not provide for giving preferential right to persons having knowledge in computer, the petitioners could not claim any preferential treatment. 4.It is contended by the learned counsel for the petitioners that the petitioners worked as DEOs continuously for five years to the utmost satisfaction of the authorities after they were duly selected. Therefore, the action of opposite party Nos.1 and 2 in abolishing the posts of DEOs and not regularizing their services was not bonafide. It is his further contention that the State Government having directed while creating new posts of Junior Assistants in the office of opposite party No.2 that preference would be given to persons having computer knowledge, the action of opposite party No.3 in issuing that advertisement under Annexure-15 without indicating the aforesaid Government instruction is illegal and unsustainable. 5.Opposite party Nos.1 and 2 have filed a counter affidavit stating that on the request of opposite party No.2, the State Government in Finance Department conveyed the approval of engagement of 31 DEOs on contractual basis in the office of opposite party No.2 through a service provider. Accordingly, the service provider was selected and agreement was entered into with it wherein it was stipulated that the persons hired by the service providing agency shall have no right or claim for appointment or absorption by virtue of their contractual engagement in the office of opposite party No.2. For the remuneration of the DEOs the service provider submitted bills from time to time and payments were being made to it. For the remuneration of the DEOs the service provider submitted bills from time to time and payments were being made to it. No order of appointment in favour of DEOs was issued by opposite party No.2 and no relationship of employer and employee existed between opposite party No.2 and DEOs. It is stated that the office of opposite party No.2 being declared as a Heads of Department the OMS Rules, 1994 governed recruitment of ministerial staff to the office of opposite party No.2. Keeping in view the heavy pendency of cases of pension and funds in the office of opposite party No.2, the Government created 63 posts of Junior Assistants under its letter in Annexure-13 with instruction for recruitment through Orissa Staff Selection Commission (opposite party No.3) by following the said Rules. Although, it was indicated in Annexure-13 that persons having knowledge in computer may be given preference, it was merely suggestive in nature and the Rules having not prescribed for giving preference to persons having computer knowledge, no objection can be taken to the advertisement issued by opposite party No.3. The creation of posts of Junior Assistants under Annexure-13 was in lieu of abolition of the temporary posts of DEOs and, therefore, the petitioners can not claim regularization or appointment in the office of opposite party No.2. 6.Opposite party No.3 has filed a counter affidavit on 11.04.2012 stating inter alia that after receipt of requisition from 23 different Heads of Departments including the office of opposite party No.2, a Syllabus Committee meeting was convened as per Rule 13 of Orissa Staff Selection Commission Rules, 1993 as amend up-to-date. The OMS Rules, 1994 having not provided for knowledge of computer in the syllabus of appointment, the Syllabus Committee decided that it might not be possible to assess the knowledge in computer of the applicants. Accordingly, no stipulation was made in the divertissement to test computer knowledge of the candidates. Therefore, the advertisement contained the requisite educational qualification of the candidates as prescribed in the OMS Rules, 1994. It is also stated that much after the recruitment process started, the OMS Rules, 1994 was amended vide G.A. Department Notification No.9502 dated 03.05.2010 prescribing a qualification of computer knowledge for which a written test on basic computer skill (objective) of 100 marks and a practical skill test on basic computer skills of 50 marks has been stipulated. It is also stated that much after the recruitment process started, the OMS Rules, 1994 was amended vide G.A. Department Notification No.9502 dated 03.05.2010 prescribing a qualification of computer knowledge for which a written test on basic computer skill (objective) of 100 marks and a practical skill test on basic computer skills of 50 marks has been stipulated. It is contended on behalf of the learned counsel for opposite party No.3 that since the recruitment process by issuance of advertisement under Annexure-15 started as per pre-amended OMS Rules, 1994, which did not prescribe for computer knowledge as a qualification, the subsequent amendment to the Rules in 2010 which has no retrospective application will not render the advertisement illegal. 7.During the course of hearing the learned counsel for the petitioners submitted that even though the OMS Rules, 1994, in accordance with which the advertisement under Annexure-15 was published, was silent about computer literacy as a qualification for the candidates, the Government letter under Annexure-13 having instructed to give preference to persons having computer knowledge, such instruction must be held to have supplemented the Rules and, therefore, opposite party No.3 should have treated the said instruction as part of the Rules while issuing the advertisement. Relying upon the Constitution Bench decision of the apex Court in the case of B.N. Nagarajan and others v. State of Mysore and others, etc; AIR 1966 SC 1942 , the learned counsel for the petitioners submits that the Government in exercise of its executive power under Article 162 of the Constitution of India can issue any notification or instruction, which may supplement the Service Rules in respect of a subject on which the Rule is silent and by applying the said principle, it must be held that the instruction of the Government under Annexure-13 to give preference to candidates having computer knowledge must be held to have been issued in exercise of the executive power of the State and the said instruction should have been followed while issuing the advertisement. 8.The decision in the case of B.N. Nagarajan (supra) reveals that 80 Assistant Engineers were recruited in the erstwhile State of Mysore by the Mysore Public Service Commission for which an advertisement was issued in May, 1959 without there being any specific service Rules for Assistant Engineers in the Public Works Department laying down the qualification, age limit, pay during the period of probation etc. In March, 1960, the Governor of the State having issued a notification providing for certain percentage of reservation to backward classes in the posts and services, vide a notification dated 1st April, 1960, the State Public Service Commission revised its earlier advertisement. In November, 1960 the Public Service Commission sent to the Government a list of 80 candidates selected by them and on 3rd December, 1960 the Government sanctioned the establishment of the State Service cadre in respect of Mysore Public Works Engineering Department Service. On the same date, the Governor of the State in exercise of power conferred by the proviso contained in Article 309 of the Constitution made Rules called the Mysore Public Works Engineering Department Services (Recruitment) Rules, 1960 prescribing the different category of posts, method or recruitment thereto and the minimum qualification and period of probation etc. The recruitment of 80 assistant Engineers by the Public Service Commission as aforesaid was challenged in a writ petition under Article 226 of the Constitution of India only on the ground that the recruitment was made by the P.S.C. dehors the Rules and hence unsustainable. It was in this context that the matter having come to the Supreme Court, it was held as follows : “(5) It would be convenient to deal with this argument at this stage. Mr. Nambiar contends that the words “shall be as set forth in the rules of recruitment of such service specially made in that behalf” clearly show that till the rules are made in that behalf no recruitment can be made to any service. We are unable to accept this contention. First it is not obligatory under proviso to Art.309 to make rules of recruitment, etc., before a service can be constituted or a post created or filled. This is not to say that it is not desirable that ordinarily rules should be made on all matters which are susceptible of being embodied in rules. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of list II, Entry 41, State Public Services. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of list II, Entry 41, State Public Services. It was settled by this Court in Ram Jawaya Kapur v. State of Punjab, 1955-2 SCR 225 : ( AIR 1955 SC 549 ), that it is not necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive are limited merely to the carrying out of these laws. We see nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Art.162 of the Constitution without a law. It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under Art.162 of the Constitution ignore or act contrary to that rule or act.” (emphasis supplied) In view of the last part of the above observation of the apex Court (underlined portion), it must be held that the case of B.N. Nagarajan (supra) has no application tot he case in hand. Besides, the Finance Department of the State Government which issued Annexure-13 creating the post of Junior Assistants is not the appropriate Department with regard to legislating Laws and Rules relating to service matters. Creating the post in any Government Department or Office needs approval of Finance Department which only considers the financial implication of the posts proposed to be created and whether it is feasible and necessary for the State exechequer to meet the recurrent expenditure which the proposed post called for. It cannot issue instruction prescribing qualification for any particular post or service. The instruction of the Finance Department in Annexure-13 that persons having computer knowledge may be given preference is not an executive instruction of the Government to supplement the OMS Rules, 1994. It cannot issue instruction prescribing qualification for any particular post or service. The instruction of the Finance Department in Annexure-13 that persons having computer knowledge may be given preference is not an executive instruction of the Government to supplement the OMS Rules, 1994. The instruction of the Finance Department is merely advisory in nature which has no force of law and is not binding on opposite party No.3, which is duty bound to recruit ministerial officers strictly in accordance with the rules as they stood on the date of issuance of the divertissement under Annexure-15. Therefore, no exception can be taken or objection raised to the legality and propriety of the advertisement under Annexure-15. 9.Though admittedly during the continuance of the recruitment process, the OMS Rules, 1994 was amended incorporating additional qualification of computer literacy for Junior Assistants, the said amendment cannot be made applicable to the present recruitment as the amendment has no retrospective effect, as per principles laid down in AIR 1983 SC 852 ; Y.V. Rangiah v. J. Srinibas Rao, AIR 1990 SC 405 ; P. Mahendran and others v. State of Karnataka and others and (1990) 3 SCC 157 ; N.T. Devin Katti and others v. Karnataka Public Service Commission and others. 10.Admittedly, the temporary posts of DEOs against which the petitioners were engaged on contractual basis through service provider have been abolished after expiry of their contract period. It is also submitted at the bar that the petitioners has also applied for the post of Junior Assistant in pursuance to the advertisement under Annexure-15 but they could not qualify. In the circumstances, there is no question of considering the case of the petitioners either for regularising their services or for giving them preference because of their computer knowledge. Accordingly, we find no infirmity in the order of the Orissa Administrative Tribunal. The writ application is, therefore, dismissed. No costs. B.P. DAS, J.I agree. Application dismissed.